City of St. Matthews v. Arterburn , 1967 Ky. LEXIS 179 ( 1967 )

MONTGOMERY, Judge.

The City of St. Matthews appeals from a judgment dismissing its petition to annex certain property between St. Matthews and the Watterson Expressway. The trial court held that the lapse of five years, six months and twenty-six days between the date of notice to the Jefferson County Fiscal Court of the introduction of an ordinance proposing annexation and the date of adoption of the ordinance in 1965 constituted an unreasonable delay which invalidated the annexation proceeding. Other questions presented are not considered in view of the lower court’s holding.

St. Matthews is a fourth-class city. KRS 81.010. The property sought to be annexed lies southeasterly from St. Matthews near the juncture of Shelbyville Road and Wat-terson Expressway. On part of the property lies a large shopping center known as “The Mall.” Only one registered voter resides within the territory sought to be annexed. Appellees Shelton B. Arterburn, Alice M. Arterburn, and Covington Arterburn own in fee all of the land involved. Appellees Louisville Shopping Center, Inc., and Bluegrass Manor, Inc., each have 99-year ground leases covering most of the territory concerned. The Fiscal Court of Jefferson County is also an appellee. The appellees, with the exception of the fiscal court, protested the annexation by answer which raised several defenses. The fiscal court answered but did not protest or present any defense. The petition was dismissed on motion of the remonstrants.

On motion to dismiss apparently the question was raised whether the fiscal court was properly notified.

Annexation proceedings in fourth-class cities are governed by KRS 81.220 et seq. However, in counties containing a city of the first class, notice of the introduction of an ordinance proposing annexation must be given to the fiscal court of the county. KRS 81.290. In substance the statute provides that the notice must be given “at least seven days prior to enactment” of the ordinance proposing the annexation. Under the statute failure to give the notice renders the ordinance null and void. It is also provided that the fiscal court shall be made a party to any protest suit. Further, the statute is silent as to what part the fiscal court shall play in the proceedings.

The petition and exhibits show that a letter dated April 14, 1960, was mailed to the Jefferson County Fiscal Court, advising of the proposed ordinance. The letter purported to contain a copy of the proposing ordinance and a map of the territory sought to be annexed. As noted, the fiscal court answered in this proceeding. From this state of facts it is sufficiently shown that the fiscal court received notice. This conclusion disposes of appellees’ argument that judicial notice should be taken of the fact that the composition of the fiscal court in 1960 and 1965 might vary so that the court as composed in 1965 might not have had notice of the proceeding. A reading of the fiscal court’s answer and the absence of a brief in its behalf indicate that the Fiscal Court of Jefferson County has no objection to the annexation.

The question resolves itself into whether the delay was unreasonable. The only pertinent statutory provision as to time is that a copy of the ordinance proposing annexation “shall be forwarded to the Fiscal Court of such county * * * at least seven days prior to enactment.” Since the facts alleged in the pleadings were accepted on consideration of a motion to dismiss, this requirement was met.

It is recognized that a court may not legislate by fixing an arbitrary time limit in the absence of a statute fixing a maximum time. Further, annexation proceedings must be conducted and completed within a time that is reasonable. 2 McQuillin Mun. Corp. (3rd Ed.), Section 7.28, Page 419. A lapse of some two years between the enactment of the proposing ordinance and the enactment of the annexing ordinance has been held not to invalidate the annexation. McClain v. City of Independence, Ky., 351 S.W.2d 512. It was pointed out therein that the lapse of several years in such matters is not infrequent. It was also suggested that there had been no showing of “any prejudice or any detriment resulting from the delay.”

An affidavit tendered on behalf of appellant indicates that there may have been some justification in the delay or that the delay may have been induced by appellees. The pleadings raise no issue of unreasonable delay except as urged on the motion to dismiss based on the bare passage of time. Whether unreasonable delay should have been asserted as an affirmative defense is not before us.

The extension of city boundaries is of considerable import to the city and to the property owners. Without holding that the delay was unreasonable, we hold it was error to dismiss the petition without a hearing at which the cause of the delay could have been determined. On the record there is nothing except the passage of time to indicate any unreasonable delay. The delay may have been justifiable or excusable. This is a factual issue which should have been determined from testimony heard. The ruling on the motion was premature in the absence of a statute fixing a time limit.

Judgment reversed.

WILLIAMS, C. and HILL, MILLI-KEN, PALMORE and STEINFELD, JJ., concur. OSBORNE, J., dissents.